This opinion is subject to
further editing.If published, the
official version will appear in the bound volume of the Official
Reports.

A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals.SeeWis. Stat. § 808.10 and Rule 809.62.

Appeal Nos.

2012AP1854-CR

2012AP1861-CR

2012AP1862-CR

Cir. Ct. Nos.2009CF5664

2010CF560

2009CF4410

STATE OF WISCONSIN

IN COURT OF
APPEALS

DISTRICT I

State of Wisconsin,

Plaintiff-Respondent,

v.

Raynard Rashawn Jackson,

Defendant-Appellant.

APPEALS
from judgments and an order of the circuit court for Milwaukee County:REBECCA
F. DALLET, Judge.Affirmed.

Before Curley, P.J., Fine and Kessler, JJ.

¶1KESSLER, J. Raynard Rashawn Jackson
appeals judgments, following a jury trial, convicting him of first-degree
recklessly endangering safety, possession of a firearm by a felon, and two counts
of witness intimidation. He also appeals
from the order denying his motion for postconviction relief. We affirm.

BACKGROUND

¶2This is a consolidated appeal arising from a shooting which
took place on September 23, 2009.According to the facts in the record, on the evening of September 23,
2009, Jackson went to the third floor of an apartment building located at 3212
West Wisconsin Avenue, Milwaukee, where his then-girlfriend, Donna Petty,
resided. Larry Carter lived in the
neighboring apartment. When Jackson arrived
at Petty’s apartment, Rickey Brown was visiting Carter’s apartment.Jackson approached Carter’s apartment door
looking for a man named “Slick.”Brown
told Jackson that “Slick” might be downstairs and said that he would go
downstairs to check.Brown began to run
down the stairs when Jackson pulled out a gun and chased after Brown.According to the criminal complaint, Jackson
fired multiple shots in Brown’s direction as he chased Brown.Jackson was subsequently arrested and charged
with first-degree reckless endangerment of safety by use of a dangerous weapon
and possession of a firearm by a felon.

¶3While in custody, Jackson placed phone calls to Carter and
Petty, in which he encouraged them not to testify against him.Jackson was then charged with two counts of
intimidating a witness.[1]

¶4Multiple witnesses testified at Jackson’s trial, including
Brown, Carter, Petty, and Petty’s friend, Shantell Jeffery.None of the witnesses testified to actually
seeing Jackson fire a weapon, but all of the witnesses testified that they
either heard gunshots shortly after Jackson’s arrival, saw Jackson chase Brown,
or saw Jackson with a gun at some point prior to the shooting. The jury found Jackson guilty as charged.

¶5Jackson filed a postconviction motion for relief based on:(1) allegations that the State violated its
discovery obligations; (2) ineffective assistance of counsel; and (3) an
improper photo array shown to Brown, Carter and Jeffery.Jackson also argued that there was
insufficient evidence to support his convictions.[2] The
trial court denied the motion. This
appeal follows. Additional facts are
discussed below as relevant.

DISCUSSION

¶6On appeal, all but one of Jackson’s claims of error depend
upon a photo array.Jackson argues: (1) that he was denied due process when the
State failed to disclose prior to trial that the photo array it provided to Jackson
in pretrial discovery was not the photo array used to identify Jackson, in
violation of state discovery statutes; (2) that trial counsel was ineffective
for failing to move for a mistrial or for the exclusion of evidence when it
became apparent that the photo array provided to the defense was not the photo
array used by police; (3) prosecutorial misconduct stemming from the State’s
failure to preserve the actual order of the photo array; (4) unduly suggestive pretrial
identification procedures; and (5) that there was insufficient evidence to
convict him of reckless endangerment and possession of a firearm by a felon.We disagree and address each argument in
turn.

A. The State complied
with discovery statutes and did not violate Jackson’s due process rights
regarding the photo array.

¶7Jackson argues that the State violated Wis. Stat. § 971.23 (2009-10)[3]
when it failed to disclose, prior to trial, that the photo array used by police
to identify Jackson was not the photo array that the State provided to Jackson
during discovery.

¶8We analyze alleged discovery violations in three steps, each
of which presents a question of law that we review de novo. SeeState v. Rice, 2008 WI App 10, ¶14, 307 Wis. 2d
335, 743 N.W.2d 517 (Ct. App. 2007).The
first step is to establish whether the State failed to make a required
disclosure.Id.The second step
is to determine whether the State had “good cause” for the failure.Id.“Finally,
if the evidence should have been excluded under the first two steps, we decide
whether admission of the evidence was harmless.” Id.Meanwhile, a trial court’s decision to
admit or exclude evidence is discretionary and will not be upset if it has a
reasonable basis and was made in accordance with accepted legal standards and
the facts of the case. State
v. Jenkins, 168
Wis. 2d 175, 186, 483 N.W.2d 262 (Ct. App. 1992).

¶9Wisconsin Stat. § 971.23
provides, as material here:

(1)What a district attorney must disclose to a
defendant. Upon demand, the district attorney shall, within a
reasonable time before trial, disclose to the defendant or his or her attorney
and permit the defendant or his or her attorney to inspect and copy or
photograph all of the following materials and information, if it is within the
possession, custody or control of the state:

….

(bm) Evidence obtained in the manner described under s.
968.31(2)(b), if the district attorney intends to use the evidence at trial.

….

(e) Anyrelevant
written or recorded statements of a witness named on a list … and the results
of any … comparison that the district attorney intends to offer in evidence at
trial.

….

(g) Any physical evidence that the district attorney
intends to offer in evidence at the trial.

¶10In light of the facts in the record, we are satisfied that the
State did not violate its discovery obligations. Detective James Campbell testified at trial
about the method by which the witnesses were shown photo arrays with Jackson’s
picture. Campbell told the jury that 100
photographs of people with characteristics similar to Jackson were chosen by a
police department computer program.Five
of those photographs, in addition to Jackson’s, were shown to the witnesses using
a “folder” method.The department also
created a lineup reference sheet, which is a black and white photo copy of the
actual photographs shown to the witnesses, but not necessarily in the order in
which any particular witness viewed them.Campbell explained the method as follows:

[T]he six photos are taken, a known filler is placed in
[folder] one; meaning, that the target of the investigation, in this case, Mr.
Jackson, cannot be in folder number one. Folders two through six have photos inside of
them and are shuffled at random so that the target, Mr. Jackson, would appear
randomly through folders two through six. Folders seven and eight contain blank sheets
of paper, which are shown after the photos.

¶11Brown was the first witness to identify Jackson from the photo
array.Campbell testified that he
initially shuffled the folders and handed them to Brown one at a time, not
knowing which folder contained Jackson’s photo.Brown identified Jackson as the shooter after selecting the photograph
in the fourth folder—the folder with Jackson’s picture. Campbell testified that he did not reshuffle
the folders prior to showing the photo array to Jeffery and Carter.Both Jeffery and Carter identified the
photograph of Jackson in the fourth folder.

¶12Although the State did not provide the actual photo array used
by Campbell, the State provided Jackson’s defense counsel with the lineup
reference sheet and a police report explaining the folder method. The lineup reference sheet displayed the same
photographs shown to the witnesses, but not in the same order as the photo
array. Rather, Jackson’s photograph was
second on the lineup reference sheet.Therefore,
even though Jackson did not have the actual photo array with his photo in the
fourth folder, he had copies of the actual photographs used in the photo array.
Jackson also had documentation
indicating that his picture was in the fourth folder shown to the witnesses. Where the discovery materials disclosed the
photos used in the array and indicated the order in which Jackson’s photograph
was shown to the witness, we conclude that the State did not violate its
discovery obligations by not providing the actual photo array prior to trial.

¶13However, even if we were to find a discovery violation, the
error was harmless. The test of harmless
error is whether we can conclude that there is sufficient evidence, not influenced
by inadmissible evidence, which would convict the defendant beyond a reasonable
doubt. See Wold v.
State, 57 Wis. 2d
344, 356, 204 N.W.2d 482 (1973). The
State did not rely on the photo array to identify Jackson.Jackson’s identity was not at issue—four of
the witnesses knew Jackson prior to the date of the incident. Brown testified that he saw Jackson visiting
Petty in the weeks prior to the shooting; Carter testified that he saw Jackson
at Petty’s apartment at one point before the shooting; and Jeffery testified
that she met Jackson two weeks prior to the shooting, at the same time as
Petty. Therefore, regardless of the
order of the photographs on the lineup reference sheet and in the photo array,
the witnesses would still have identified Jackson and the jury would still have
a basis to conclude beyond a reasonable doubt that Jackson was the perpetrator
in the crimes charged.

¶14Jackson also argues that his trial counsel was ineffective for
failing to move for a mistrial or for the exclusion of evidence when it became
apparent that the photo array provided to the defense was not the array used by
police.

¶15In order to prevail on a claim of ineffectiveassistanceofcounsel, a defendant must show that his attorney’s performance
was deficient and that
he was prejudiced as a
result of his attorney’s deficient conduct.SeeStrickland v.
Washington, 466 U.S. 668, 687 (1984).See alsoState v. Pitsch, 124 Wis. 2d 628,
633, 369 N.W.2d 711 (1985).A defendant
claiming ineffectiveassistanceof counsel must prove both that
his or her lawyer’s representation was deficient, and, as a result, the defendant suffered prejudice. Strickland,
466 U.S. at 687.To prove deficient
performance, the defendant must show specific acts or omissions of his attorney
that fall “outside the wide range of professionally competent assistance.”Id. at 690.To show prejudice, the defendant must
demonstrate that the result of the proceeding was unreliable.Id.at 687.If the defendant fails on either prong—deficient performance
or prejudice—his ineffective assistance of counsel claim fails.Id. at 697.We “strongly presume[]” counsel has rendered
adequate assistance. Seeid. at 690.

¶16In its decision on Jackson’s postconviction motion, the trial
court stated that even if Jackson’s counsel had moved for a mistrial or for the
exclusion of evidence, “there is not a reasonable probability in the slightest
that the court would have granted either request.”Because the trial court would not have
granted either motion, trial counsel’s decision not to make either request was
not prejudicial within the meaning of Strickland.Moreover, a jury could still convict Jackson
beyond a reasonable doubt because, as we have explained, the photographs were
not material to the defense.Counsel cannot be found
ineffective for failing to raise meritless motions.See State v. Toliver, 187 Wis. 2d 346, 360, 523 N.W.2d 113 (Ct. App.
1994).

C. Prosecutorial misconduct regarding the photo array.

¶17Jackson
contends that the “State’s construction of an inaccurate and irrelevant photo
array and its inclusion in the discovery material provided to the defendant
constituted prosecutorial misconduct.”In essence, Jackson contends that the prosecutor manufactured evidence
in an attempt to mislead him. The record
does not support this contention. Jackson
did not specifically allege prosecutorial misconduct in his postconviction
motion.Accordingly, the trial court did
not specifically address the issue in its decision. We are therefore not convinced that Jackson
preserved the issue for appeal and decline to address the issue further.[4]See State
v. Huebner, 2000 WI 59, ¶¶10-12, 235 Wis. 2d 486, 611 N.W.2d 727
(Appellants cannot raise issues for the first time in the court of appeals
because the trial court must be given an opportunity to review the issue.).

D. The photo array procedure was not unduly suggestive.

¶20Jackson
argues that the identification procedure by which Carter and Jeffery identified
him was unduly suggestive.Specifically,
Jackson argues that Campbell violated the Department of Justice’s “Best
Practice Method,” which requires shuffling the folders containing suspect
photographs before each witness views them.

¶21Campbell
testified that he shuffled the folders prior to Brown’s viewing, but did not
reshuffle them prior to showing the folders to Carter and Jeffery. Campbell stated that he did not reshuffle the
folders so that he could more easily keep track of the responses. This, Jackson contends, was unduly suggestive
because “the witnesses may have perceived such things as unintentional voice
inflection or prolonged eye contact, in addition to off-handed words or
phrases, as messages regarding [Carter’s and Jeffery’s] selection.”

¶22The State
points out, and Jackson does not refute, that no objection was made during
trial relating to the failure to shuffle the photographic array.Accordingly, Jackson has not preserved the
issue for appellate review. SeeState v. Romero, 147 Wis. 2d 264,
274, 432 N.W.2d 899 (1988) (In order to preserve an issue for appeal a party
must object to the error at trial.); State v. Alexander, 2005 WI App 231,
¶15, 287 Wis. 2d 645, 706 N.W.2d 191 (“Arguments not refuted are deemed
admitted.”).Moreover, Jackson’s
arguments that Carter and Jeffery may
have taken cues from Campbell when identifying Jackson are purely speculative. We decline to consider this further.

E. There was sufficient evidence to support the convictions.

¶23Lastly,
Jackson argues that there was insufficient evidence to convict him of being a
felon in possession of a firearm and of recklessly endangering safety because none
of the testifying witnesses saw Jackson fire a gun.

¶24When we
review a conviction for sufficiency of the evidence, we will not reverse a
conviction “unless the evidence, viewed most favorably to the state and the
conviction, is so insufficient in probative value and force that it can be said
as a matter of law that no trier of fact, acting reasonably, could have found
guilt beyond a reasonable doubt.” State v. Poellinger, 153
Wis. 2d 493, 501, 451 N.W.2d 752 (1990). We may not substitute our judgment for that of
the fact-finder.Seeid. at
506-07.The jury determines the
credibility of all witnesses and the weight to be accorded their testimony. See Bautista v. State,
53 Wis. 2d 218, 223, 191 N.W.2d 725 (1971).Therefore, “[i]f any possibility exists that
the trier of fact could have drawn the appropriate inferences from the evidence
adduced at trial to find the requisite guilt,” we may not overturn the verdict
even if we believe the fact-finder should not have found guilt. Poellinger, 153 Wis. 2d at 507.

¶25Jackson
contends that none of the State’s key witnesses—Brown, Petty, or Jeffery—saw
Jackson fire a weapon. Jackson also argues that because neither a gun
nor casings were found in his possession, the jury did not convict him based on
adequate evidence. Jackson is incorrect.

¶26Brown saw
Jackson with a gun.He testified that
Jackson pointed a handgun at him (Brown) and then chased Brown down a
stairwell.Brown testified that he did
not look behind him as he was running, but heard multiple shots fired from
behind him as he was being chased by Jackson.The jury submitted a question, asking Brown “[i]f you are running away,
how can you be sure it was the defendant shooting at you?” Brown responded:

Because while I’m running, I’m trying to look like to
see where I’m at where I need to be to get away. I can see. Especially when he stepped at the last shot he
made … you know, I’m looking back at him then anyway because he hollering and
yelling.

He
coming at me like that with the pistol. I
just reached and grabbed the door at that time. As soon as I grabbed the door and pulled it
over to the side like that, the bullet went right by the side to the door. Yes. I knew he was shooting at me[.]

¶27Petty
told the jury that when Jackson arrived at her apartment, just before the
shooting, she saw that Jackson “had his shirt over a gun.”Jeffery testified that she was at Petty’s
apartment when the shooting occurred.She told the jury that Jackson came to Petty’s apartment the night of
September 23, 2009, and that she remembers “just hear[ing] gunshots” after
Jackson’s arrival. Carter told the jury
that Brown was at his apartment when he heard Jackson at Petty’s neighboring
apartment. Carter testified that shortly
after Jackson arrived at Petty’s apartment, Jackson called out to Carter, whose
apartment door was open.Jackson asked
Carter if he knew “Slick,” at which point Brown came out of Carter’s apartment
and “headed downstairs.”Carter told the
jury that Jackson “chased after” Brown and that he (Carter) “just heard
gunfire” after Brown and Jackson were out of his line of sight.

¶28The jury could
reasonably infer from the testimony of these witnesses that Jackson possessed a
gun and fired shots at Brown. There was
sufficient evidence to support Jackson’s convictions of felon in possession and
reckless endangerment.

CONCLUSION

¶29For the
foregoing reasons, we affirm the circuit court.

By the Court.—Judgments and order affirmed.

Not
recommended for publication in the official reports.

[1] Jackson
does not challenge the facts concerning the intimidation of a witness charges
on appeal.

[2] On
appeal Jackson only challenges the sufficiency of the evidence concerning his
convictions of reckless endangerment and possession of a weapon by a felon.

[3] All
subsequent references to the Wisconsin Statutes are to the 2011-12 version
unless otherwise noted.

[4] To
the extent prosecutorial misconduct is implied in Jackson’s postconviction
motion, we conclude that no misconduct occurred.Our decision is clear that Jackson was not
prejudiced by the photo array and no evidence in the record supports Jackson’s
contention that the State attempted to intentionally mislead him.